Judge says domain name loss is not a “substantial hardship”

A federal judge has refused to return two Rojadirecta domain names to their …

A federal judge has rejected a petition by the Spanish company Puerto 80 for the return of the domain names Rojadirecta.com and Rojadirecta.org. The US federal government seized the domains earlier this year, arguing that they were primarily used to provide links to infringing sporting content.

Puerto 80 says that after weeks of playing phone tag with federal officials, it was told that it could only have the domain names back if it agreed not to "link to any U.S. content anywhere on its sites anywhere in the world." Since this demand clearly exceeded what was required of it under copyright law (and arguably violated the First Amendment), Puerto sued for the return of the domain names.

Under federal law, the owner of seized property can seek its return if the government's continuing to hold it would cause a "substantial hardship" to its owner. Puerto 80 pointed not only to the loss of traffic since the seizure, but also to the infringement of its First Amendment rights. It also pointed out that its activities had already been ruled legal by the Spanish courts.

But Judge Paul Crotty was unconvinced. He replied that Puerto 80 had registered alternative domains like rojadirecta.me and rojadirecta.es, and that Rojadirecta can use its "large Internet presence" to "simply distribute information about its new domain name to its customers."

And he rejected Puerto 80's First Amendment claims because the "main purpose" of the website is to "catalog links to copyrighted athletic events." He wrote that "Puerto 80 may certainly argue this First Amendment issue in its upcoming motion to dismiss, but the First Amendment considerations discussed here certainly do not establish the kind of substantial hardship required to prevail on this petition."

But the Electronic Frontier Foundation's Corynne McSherry says that the Supreme Court has ruled otherwise. "We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means," the high court wrote in 1976.

"A mere finding of 'probable cause' does not and cannot justify a prior restraint," McSherry writes. "How the court believes that the seizure satisfies the First Amendment in this regard is a mystery."

Then what does count as substantial hardship? They already have shown they lost traffic which is the life blood of most sites, certainly ones like the one in question. His argument about just telling everyone is clearly invalid just based on that.

Well some people are just more equal than others. Looks like we need to move administration of domain names to a neutral country. Looks like the trial was complete and the accused was not invited to defend themselves.

Very tricky issue, this one. For a web-based company, their website and thus their domain name is pretty much all they have. Losing it would seem on the surface to be a substantial hardship. But the very nature of the web means that its relatively easy to move to a new domain name, and if you've got enough web presence to point people at the new address, then its basically trivial. Not sure what side of the issue I come down on.

Lets have anonymous Seize or Take-over say the FBI or Justice Dept sites, do nothing with them but prevent the owner from rightfully using them and see whether that argument holds water then How about if that were to happen to Facebook, Twitter, Apple, Microsoft, Intel, or the BBC for that matter.

The law is an ass and the Judge is clearly the small smelly hole at the far end.

Lets have anonymous Seize or Take-over say the FBI or Justice Dept sites, do nothing with them but prevent the owner from rightfully using them and see whether that argument holds water then How about if that were to happen to Facebook, Twitter, Apple, Microsoft, Intel, or the BBC for that matter.

The law is an ass and the Judge is clearly the small smelly hole at the far end.

Yes, because the FBI's and Justice Department's web sites will totally shut down their ability to do anything. Wait, it's just their websites:

Very tricky issue, this one. For a web-based company, their website and thus their domain name is pretty much all they have. Losing it would seem on the surface to be a substantial hardship. But the very nature of the web means that its relatively easy to move to a new domain name, and if you've got enough web presence to point people at the new address, then its basically trivial. Not sure what side of the issue I come down on.

No it's not tricky. If people couldn't go to facebook.com they would loose millions of hits even if you can go to facebook.net. It's like saying Google could change it's name and not loose money. It's a brand and for anyone online it's literally your store front. How exactly is it easy to pass info on to your customers when they don't know how to access the info.

How can this ruling stand? In the internet age, taking the domain name of a website, even if for a single market country, is like forcing the closing of a retail store. Just because I have 10 more stores scattered around the country/world does not mean that the closing of one of them is not a financial hardship.

"A mere finding of 'probable cause' does not and cannot justify a prior restraint," McSherry writes. "How the court believes that the seizure satisfies the First Amendment in this regard is a mystery."

Seems like we're edging ... excuse me, "leaping" from "Innocent until proven guilty" towards "Innocent until probable cause" in this country. And in some cases *cough* RIAA/Congress *cough*, "Innocent until we decide you aren't, and you can try to prove you aren't after we've already taken action against you."

Lets have anonymous Seize or Take-over say the FBI or Justice Dept sites, do nothing with them but prevent the owner from rightfully using them and see whether that argument holds water then How about if that were to happen to Facebook, Twitter, Apple, Microsoft, Intel, or the BBC for that matter.

The law is an ass and the Judge is clearly the small smelly hole at the far end.

Yes, because the FBI's and Justice Department's web sites will totally shut down their ability to do anything.

I think you misunderstood the point. I can guarantee that if the FBI's site had to go from FBI.gov to FBI.us and wasn't getting autoforwarded, it would be substantially disruptive to the FBI and people who wanted to get in touch with them.No one is claiming that Puerto 80 came to a screeching halt due to this, nor would the FBI suddenly fall apart should their domain be taken. It would be a substantial hardship no matter what the judge claimed.

It also pointed out that its activities had already been ruled legal by the Spanish courts.

Silly, Puerto 80, breaking US law on the Internet cannot be tolerated --even if it is by Spanish citizens accessing a website in Spain.

I'm still waiting for some sovereign state to declare that they don't honor any intellectual property. The US would go nuts with sanctions and public cries of theft and unfair trade. I swear that the US acts as though IP is a god-given right than a legal construct. They can't admit that we just make up the rules as we go because then we'd have a hard time convincing other countries to pay us.

The government has been abusing seizure of physical property for a long time, often causing far greater hardship for the owner than occurs here, and with little more evidence than an accusation. It isn't surprising to me that judges that would allow that would allow this.

Very tricky issue, this one. For a web-based company, their website and thus their domain name is pretty much all they have. Losing it would seem on the surface to be a substantial hardship. But the very nature of the web means that its relatively easy to move to a new domain name, and if you've got enough web presence to point people at the new address, then its basically trivial. Not sure what side of the issue I come down on.

No it's not tricky. If people couldn't go to facebook.com they would loose millions of hits even if you can go to facebook.net. It's like saying Google could change it's name and not loose money. It's a brand and for anyone online it's literally your store front. How exactly is it easy to pass info on to your customers when they don't know how to access the info.

It depends on how popular the site is and and whether they can communciate the domain change to their members (like via email). Especially if you are searching via Google (just searching for Rojadirecta should turn-up the correct site).

At any rate, the harm has already been done (as soon as it was seized). Everyone who wanted to continue using the service would probably have, long since, started using one of its other domain names; so at this point, holding onto the .com and .org domains might not make a huge difference.

Of course, the domain should never have been seized in the first place. But that's what happens when one country controls the top-level .com and .org domains, you have to play by their rules.

It seems to follow that if the loss of the domains did not represent a substantial hardship, then there was no reason for such an arbitrary extralegal seizure, nor a point in continuing to hold them, in which case... they should also be returned pending trial?

The very logic of seizing and continuing to hold them in the first place would refute any claim of this not being a substantial hardship, or vice versa if not held to be so.

Normally clauses like this are held to their spirit, and kept consistent with similar cases in terms of analyzing losses relating to the continued withholding of property. It's utterly ridiculous that this judge is apparently not doing so, and simply ignoring any evidence for continued material loss relating to the domain's forfeiture. It is, sadly, the potential problem whenever indistinct terms are used to set thresholds.

Very tricky issue, this one. For a web-based company, their website and thus their domain name is pretty much all they have. Losing it would seem on the surface to be a substantial hardship. But the very nature of the web means that its relatively easy to move to a new domain name, and if you've got enough web presence to point people at the new address, then its basically trivial. Not sure what side of the issue I come down on.

No it's not tricky. If people couldn't go to facebook.com they would loose millions of hits even if you can go to facebook.net. It's like saying Google could change it's name and not loose money. It's a brand and for anyone online it's literally your store front. How exactly is it easy to pass info on to your customers when they don't know how to access the info.

But what defines substantial? That it is a hardship is pretty much unquestionable; your points are all quite valid. Its very possible that such a hardship would be substantial, but if you lose 2 million hits on a site that gets 50 million hits a day, is that substantial? That's a lot of losses in absolute terms, but not so bad in relative terms.

Lets have anonymous Seize or Take-over say the FBI or Justice Dept sites, do nothing with them but prevent the owner from rightfully using them and see whether that argument holds water then How about if that were to happen to Facebook, Twitter, Apple, Microsoft, Intel, or the BBC for that matter.

The law is an ass and the Judge is clearly the small smelly hole at the far end.

Yes, because the FBI's and Justice Department's web sites will totally shut down their ability to do anything. Wait, it's just their websites:

The government should not have the power to seize a domain name without due process unless America is in a state of martial law. We are a country of laws, if a website operator is breaking the law by offering links to copyrighted material (if linking in and of itself violates current laws, which is still up for debate) then he needs to be taken to court and found guilty of said violations before being sanctioned, especially in a way that restrains his first amendment rights.

so the government can take any website lets say for instance arstechnica and its not substantial hardship... ok how about intel or any other big corporation/news outlets???? can you say censorship. i know i can

If taking their domain name isn't a substantial loss to Puerto 80, why is the FBI doing it at all?

And what gives them the right to seize a Spanish website, anyway?

it was based in USA? Either way that is the thing that I find odd. the Spanish courts ruled that they are fine with pulling broadcasts from another country and posting it, but if the servers are located in a US Based location does their jurisprudence mean anything?

If taking their domain name isn't a substantial loss to Puerto 80, why is the FBI doing it at all?

And what gives them the right to seize a Spanish website, anyway?

it was based in USA? Either way that is the thing that I find odd. the Spanish courts ruled that they are fine with pulling broadcasts from another country and posting it, but if the servers are located in a US Based location does their jurisprudence mean anything?

Aside from the fact that Rojadirecta.com has zero legal rights under domestic US Law (international policy not-withstanding) this isn't a 1st Ammendment issue. It should be a 4th Ammendment issue - they seized private property without due process - a court order or a warrant.

Better watch out - the US Gov't is on its way to begin justifying anything and everything in the name of comabtting terrorism. This copyright bullshit is way past the ranting of the Cassette Tape era and more into the likeness of Witch Hunting and McCarthyism.

Last I checked - we are supposed to be adhering to the Constitution above all else - but some Feds seem to be a little blind lately. Can't wait for them to press the wrong button with an actual citizen that forces this shit to come to a dead stop.

Well some people are just more equal than others. Looks like we need to move administration of domain names to a neutral country. Looks like the trial was complete and the accused was not invited to defend themselves.

And you wonder just how much money this schmuck of a Judge was payed by the MAFIAA to do this.This ruling is disgusting.Web Based Company loses domain name and this is not a "hardship".This Judge has his head up his asshole.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.